H-1B Cap Reached & The STRIVE ACT

By Attorneys Robert Reeves and Jeremiah Johnson

Border security is important, but so is family security. On March 22, 2007, the House of Representatives introduced a bill for comprehensive immigration reform entitled the STRIVE Act of 2007 (Security Through Regularized Immigration and a Vibrant Economy Act of 2007). The urgent need for a comprehensive approach to immigration reform has been underscored this week with the announcement that the 2008 fiscal year H-1B cap had been reached on the very same day that applications were accepted. On April 3, 2007, the United States Citizenship and Immigration Services announced that it had received approximately 150,000 cap subject petitions and that applications with a “final receipt date” of April 2, 2007 will now be subject to a computer generated random selection process. This process will take several weeks. The STRIVE Act addresses this problem by not only increasing the initial cap on H-1B visas to 115,000, but also providing a provision for further increases as needed up to 180,000.

With almost 700 pages, the STRIVE Act is a comprehensive approach to immigration reform and includes provisions addressing border security; immigration enforcement; employment verification; a new guest worker program; visa reforms; and an earned legalization program for the undocumented. The last provision, earned legalization is essential because it offers family security and a path to United States citizenship through a three step process: 1) conditional nonimmigrant status; 2) lawful permanent resident status; and 3) United States citizenship. Complimenting the earned legalization program, the STRIVE Act reforms the visa system, including much needed H-1B increases.

Step 1: Conditional Nonimmigrant Status
The STRIVE Act establishes a new visa program for undocumented aliens and their families: conditional nonimmigrant status. Qualified applicants will be able to apply for conditional nonimmigrant status. This status will be valid for six years. The preliminary qualification requires an undocumented aliens establish their continuance presence in the United States on or before June 1, 2006. If an applicant meets this requirement, they must establish a history of employment, a clear a criminal record, and pay a $500 fine. There will also be a separate application fee. It is important to note that applicants with fewer than three misdemeanors, immigrants in removal proceedings and aliens who have failed to voluntarily depart will still be eligible to apply for conditional nonimmigrant status. Once approved, an applicant with conditional nonimmigrant status will be provided with work authorization and be permitted to travel

Step 2: Lawful Permanent Resident Status
After an applicant and their family obtain conditional nonimmigrant status, they will be eligible to apply for lawful permanent resident status (green card) and eventually citizenship. Applicants must wait for the current immigrant backlogs to be cleared before they can adjust their status. To help with this process, the STRIVE Act includes visa reforms that will increase the number of available family sponsored and employment based visa petitions. Under the earned legalization program, a conditional nonimmigrant may adjust their status to lawful permanent resident if the applicant meets employment requirements during their period of conditional nonimmigrant status; pay a $1,500 fine; clear criminal background checks; pass an English and civics test; and comply with the “touchback” or “Legal Reentry” provision. This provision does not require the alien to return to their home country; rather the alien could renter the United States via Canada or Mexico. The STRIVE Act also provides important administrative and judicial review of erroneously denied applications by the immigration service.

Step 3: United States Citizenship
The final step in the earned legalization program is the opportunity to apply for naturalization – the process to acquire United States citizenship. At this step of the process, the applicant will have already completed the requirements for conditional nonimmigrant status and lawful permanent resident status. As such, the applicant would be eligible to apply for naturalization just like any other green card holder. An applicant for naturalization must meet a required period of continuous residence and physical presence in the United States. Normally, an applicant must be a lawful permanent resident for 5 years, and have been physically present in the United States for a period of more than one half the time. The applicant must also establish an ability to read, write, and speak English; a knowledge and understanding of U.S. history and government; good moral character; attachment to the principles of the U.S. Constitution; and, favorable disposition toward the United States.

Earned legalization is just one provision of the STRIVE Act, but it is an important provision. The STRIVE Act also includes the DREAM Act that provides relief for undocumented children, an increase in H-1B visas as discussed above, and a new guest worker program that creates a new H-2C visa which will be valid for three years and renewable for an additional three years. These H-2C workers, and their families, will also be eligible to apply for conditional nonimmigrant status, which as discussed above, may lead to United States citizenship.

Although the STRIVE Act is just a bill, the provisions are encouraging at a time of needed reform. Reeves & Associates will continue to provide the most current information regarding this historic opportunity to not only secure our borders, but to secure our families.